This Note argues that under Batson, J.E.B., the First Amendment, and the Equal Protection Clause, religion-based peremptory challenges are unconstitutional. This Note asserts that the analysis of governmental religious discrimination, such as a peremptory challenge, is the same under either the First Amendment or the Equal Protection Clause because both apply strict scrutiny to purposeful government discrimination.
Part I examines Batson and J.E.B. in greater detail and states a model for analyzing discriminatory peremptory challenges in which such challenges are treated as intentional governmental discrimination subject to heightened scrutiny. Part II argues that under the First Amendment, intentional governmental religious discrimination, such as a peremptory challenge, is strictly scrutinized. Part III asserts that strict scrutiny is applied to religious discrimination under the Equal Protection Clause as well. Part IV applies the strict scrutiny standard to religion-based peremptory challenges and concludes that such challenges are not narrowly tailored and therefore are unconstitutional. Part V addresses the practical difficulties involved in finding religion-based peremptory challenges unconstitutional and argues that they are not significant enough to preserve the use of religion-based peremptory challenges.
Benjamin H. Barton,
Religion-Based Peremptory Challenges After Batson v. Kentucky and J.E.B. v. Alabama: An Equal Protection and First Amendment Analysis,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol94/iss1/6